Law Enforcement and the Law

with Ken Wallentine

The Plain View Doctrine (in plain English)

The plain view doctrine allows an officer to seize without a warrant, evidence and contraband found in plain view during a lawful observation. In order for the officer to seize the item, the officer must have probable cause to believe the item is evidence of a crime or is contraband.-- Wikipedia

A Michigan motel clerk alerted police to suspicious behavior by Garcia and his associates. Officers rented an adjoining motel room and listened through cracks in the locked door. They heard conversations about weapons, money and drugs, including reference to a delivery on the following day. Garcia also told his companions that they should switch hotels because too many people were asking too many questions about their activities. The next day, officers stopped a Suburban carrying Garcia and his companions. The officers frisked each of the five men and seized a pager from Garcia. A drug detector canine arrived thirty minutes after the initial stop. The dog sniff revealed the presence of the odor of illegal drugs. Based on the sniff, officers obtained a warrant and found drugs and a large amount of cash. Another warrant search on a semi-trailer located at Garcia’s hotel resulted in the seizure of 3,000 pounds of marijuana.

Two weeks later, Texas officers served a search warrant authorizing a search of Garcia’s Texas residence for illegal drugs. They found cocaine, marijuana and packaging materials. Officers also read and seized hundreds of documents, including receipts and financial statements. The officers justified the seizure of the documents on the plain view doctrine, reasoning that the documents apparently reported drug sales. Evidence gathered in the Texas search was introduced in the Michigan prosecution.

Garcia challenged the traffic stop, the canine sniff, and the seizure of the documents. The court easily found that the stop was based on reasonable suspicion. Moreover, the canine sniff occurred within 30 minutes of the initial stop and the court found that was a reasonable time to allow for summoning a detector dog to the scene. Nonetheless, the court suppressed the evidence from the documents in Garcia’s Texas home. A warrant to search for drugs and paraphernalia did not include documents, and the plain view doctrine did not allow officers to read documents that they found in the course of the search. The court noted that an officer might well discern the incriminating nature of documents during a drug search, and documents might be subject to seizure under the plain view doctrine. However, in this case the testimony was clear that the officers carefully scrutinized the documents during the search. A better course would have been to seek an additional warrant to examine the documents once there was some indication that they were evidence of a crime. United States v. Garcia, --- F.3d ----, 2007 WL 2254435 (6th Cir. 2007).

Documents examined during border search can be seized under plain view doctrine

Seljan sent several FedEx packages to the Philippines.During a routine Customs inspections of packages, an ICE agent opened one of Seljan’s packages.The agent found envelopes with cash, a brochure for a Manila hotel, and a sexually-suggestive letter written to a very young girl.ICE agents interviewed Seljan’s landlord, who reported that Seljan bragged of traveling to the Philippines to have sex with children.Immigration records showed that Seljan had traveled to the Philippines over 40 times in the past decade. ICE agents intercepted another FedEx package with cash, photos of Seljan and children, and adult pornography.They also found letters to children describing the sex acts that Seljan desired to perform with the children.Agents intercepted Seljan at LAX airport, searched his bags, and found photos of Seljan having sex with young children.Seljan was arrested for possession of child pornography and attempted travel to engage in sex acts with a minor.

Seljan claimed that the initial inspection of his FedEx package (that lead to the investigation of his activities) was unlawful, and therefore the entire investigation was the fruit of a poisonous tree. The court found that 31 U.S.C. § 5317(b), which provides that “a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States,” justified the search of the envelopes in the FedEx package.Unlike the situation in United States v. Garcia (reported above), this search was conducted at the functional equivalent of the international border and the very lenient border search doctrine allowed inspection of the letters in the package and seizure under the plain view doctrine.Seljan, having a prior sex abuse conviction on his record, now has 20 years in federal prison to think about it.United States v. Seljan, --- F.3d ----, 2007 WL 2302371 (9th Cir. 2007).

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About the author

Ken Wallentine is Vice President and Senior Legal Advisor of Lexipol LLC (www.Lexipol.com), the nation’s leading provider of risk management policies and resources for public safety agencies. He is a retired chief and former prosecutor with over three decades of public service.